State Responsibility and the Question of Expropriation: A Preliminary to the “Land Expropriation without Compensation” Policy in South Africa

Abstract

Expropriation is a right granted to States under international law; however this right does not guarantee States to abuse their power to unlawfully seize properties without following due process or paying the right compensation. In August 2018, the president of South Africa proposed a bill that would allow the government to expropriate land without compensation and this bill has attracted the attention of both scholars of international law and foreign investors.With a qualitative approach and a cross sectional analysis of data, this article seeks to analyze the nature of this bill to determine whether it infringes on the principles and practice of international law, as well as the likely consequences that the bill could have on the global image of South Africa and foreign direct investment in the country. The research approach allowed the authors to analyze important literature while making inferences to cases of expropriation in different parts of the world and juxtaposing them with South Africa's intended policy.The article concludes that one of the main critical issues for determining the lawful nature of expropriation is that it should be accompanied by an appropriate, adequate, effective, and prompt compensation, and as such not only does this bill constitute to a breach of international law but it will also damage the economy by scaring foreign investors away. In addition, the State would be compelled to spend millions of the already limited resources of the country in defending itself against international lawsuits that will be filed by affected individuals. It is thus suggested that a much better approach for land reform should be adopted by the government in its quest for development.

The neoliberal influence on South Africa’s early democracy and its shortfalls in addressing economic inequality

“…Today, President Cyril Ramaphosa must find a balance between protecting the rights of private property, but also considering the outcry for some form of land redistribution from many South Africans. If done equitably, executed with precision, and within the boundaries of international law, land reform in South Africa could promote economic stability and reflect strong ethical leadership to the international community (Kwarteng & Botchway 2019, 98). Nonetheless, higher growth rates and economic development are necessary to create the South Africa that was promised in 1994.…”

Are former commercial farmers in Zimbabwe satisfied with the global compensation agreement?

“…Adequacy can be used as a yardstick to measure the effects of expropriation on displaced people (Lin, 2018;Kwarteng & Botchway, 2019). The term adequacy is derived from the word adequate, meaning satisfactory or acceptable (Smith, 2001).…”

The Balanced Obligation and the Basis for Compliance in International Law: Reflections on the Question of International Obligation

“…(Okley, 2004, p. 15) While the judiciary of any State may in one way or the other, on the ground may disregard or overlook international law and make a decision that is contrary to international law by hiding behind the cloak of the independence of judiciary, the State in question may nevertheless, under normal circumstances be held responsible for any such breach on the international stage. (Hamid & Sein, 2005) Thus, parties to international agreements and treaties in the international system are not necessarily independent from responsibilitysovereignty does not equate irresponsibility (Kwarteng & Botchway, 2019) and it is this that calls for balancing obligation. This balancing would be successful when the four fundamentals indicated earlier are carefully adhered to by States in their dealings in the international system.…”